Nikki Haley's Resignation Letter, the HILL

November 2, 2018 VIA ELECTRONIC MAIL

U.S. Department of State Office of Information Programs and Services A/GIS/IPS/RL SA-2, Suite 8100 Washington, DC 20522-0208 [email protected]

Re: Freedom of Information Act Request

Dear Freedom of Information Officer:

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing regulations of the Department of State (State), 22 C.F.R. Part 171, American Oversight makes the following request for records.

On October 9, 2018, Nikki R. Haley announced that she would be resigning at the end of the year from her position as U.S. Ambassador to the United Nations (USUN). In her resignation letter, Ambassador Haley thanked President Trump for the opportunity to serve, touted the administration’s foreign policy milestones, expressed her desire to return to the private sector, and assured President Trump she would not be a candidate for office in 2020.1 Despite this assurance, there has been widespread speculation about Haley’s political ambitions, including the possibility of future presidential runs.2 American Oversight seeks records that will improve the public’s understanding of Haley’s actions and communications during her tenure as Ambassador to the United Nations and shed light on how Ambassador Haley has impacted U.S. Policy.

Requested Records

American Oversight requests that State produce the following records within twenty business days:

All email communications of USUN Ambassador Nikki R. Haley sent or received, on both classified and unclassified systems, with the following individuals:

1 The Hill Staff, READ: Nikki Haley’s Resignation Letter, THE HILL (October 9, 2018, 12:45 PM), https://thehill.com/homenews/administration/410577-read-nikki-haleys-resignation-letter. 2 Kambiz Foroohar & Toluse Olorunnipa, Haley for President? UN Diplomats Bet Trump Envoy Has Ambitions, BLOOMBERG (January 11, 2018, 4:00 AM), https://www.bloomberg.com/news/articles/2018-01-11/haley-for-president-un-diplomats-bet-trump- envoy-has-ambitions.

1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org

1. Mike Pompeo 2. Rex Tillerson 3. John Bolton 4. Stephen Bannon 5. Sebastian Gorka 6. Brian Hook 7. Ivanka Trump 8. Jared Kushner 9. Donald Trump, Jr. 10. Eric Trump 11. Kellyanne Conway 12. Stephen Miller 13. Dina Powell 14. Mari Stull

Please provide all responsive records from January 24, 2017, through the date the search is conducted.

This request includes all messages on which Ambassador Haley appears (whether in the to, from, cc, or bcc field), as well as all prior messages (whether incoming or outgoing) reflected in the responsive correspondence and any attachments thereto.

This request should include any messages sent using personal email in correspondence to other State Department employees or regarding US government business.

In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If State uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request.

American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production.

Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of

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official business conducted using unofficial systems or stored outside of official files are subject to the Federal Records Act and FOIA.3 It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations.4

In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered State’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches.5 Furthermore, agencies that have adopted the National Archives and Records Administration (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but State’s archiving tools would capture that email under Capstone. Accordingly, American Oversight insists that State use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. American Oversight is available to work with you to craft appropriate search terms. However, custodian searches are still required; agencies may not have direct access to files stored in .PST files, outside of network drives, in paper format, or in personal email accounts.

Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption”

3 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016). 4 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). 5 Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidential- memorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf.

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or “disclosure is prohibited by law.”6 If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.”7 Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.”8 Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’”9

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document.10 Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, State is on notice that litigation is reasonably foreseeable.

To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and State can decrease the likelihood of costly and time-consuming litigation in the future.

Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.

6 FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). 7 Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). 8 King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). 9 Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). 10 Mead Data Central, 566 F.2d at 261.

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Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 22 C.F.R. § 171.16(a), American Oversight requests a waiver of fees associated with processing this request for records. First, the subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way.11 Second, the request is primarily and fundamentally for non-commercial purposes.12

Under the public interest requirement, FOIA requesters must satisfy four factors in sequence.13 American Oversight has met these four factors for the reasons set forth below. The subject matter of the requested records specifically relates to the operations or activities of the government, because it concerns the communications that of one of the State Department’s highest-ranking officials. The requested documents will be “likely to contribute” to an understanding of specific government operations because of their potential to shed light on the views and actions of Ambassador Haley in representing the United States at the United Nations.

Increasing the likelihood that disclosure of these records will contribute significantly to public understanding, American Oversight’s objective is to reveal to the public at large any information it receives related to this FOIA request. American Oversight has the capacity to disseminate this information as it posts all records to its public websites and publishes analyses of its records. In the past, the organization has successfully informed the public of specific government activities and operations. As an example, American Oversight obtained Education Secretary DeVos’s calendar entries, which revealed Secretary DeVos’s frequent absences from office, staffing choices, and the influence of charter schools and for-profit colleges on the Education Department.14 The New York Times and CNN relied on American Oversight’s analyses to report on Secretary DeVos’s priorities within the Department of Education.15

11 22 C.F.R. § 171.16(a)(1). 12 22 C.F.R. § 171.16(a)(2). 13 D.C. Technical Assistance Org. Inc. v. U.S. Dep’t of Hous. and Urban Dev. (D.C. Technical Assistance), 85 F.Supp.2d 46, 48–49 (D.D.C. 2000) (requested documents will contribute to “greater understanding of government activities”). 14 See Influence & Access at the Department of Education, AMERICAN OVERSIGHT (Oct. 27, 2017), https://www.americanoversight.org/investigation/influence-access-at-the-department-of- education; Unexcused Absences: DeVos Calendars Show Frequent Days Off, AMERICAN OVERSIGHT (Oct. 27, 2017), https://www.americanoversight.org/unexcused-absences-devos. 15 Eric Lipton, Betsy DeVos’s School Schedule Shows Focus on Religious and Nontraditional Schools, N.Y. TIMES, Oct. 27, 2017, https://www.nytimes.com/2017/10/27/us/politics/betsy-devos- work-schedule-education.html; Gregory Wallace et. al., What Betsy DeVos’s Schedule Tells Us About Her Agenda, CNN (Oct. 29, 2017, 12:22 PM), http://www.cnn.com/2017/10/28/politics/devos-schedules-education/index.html.

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Disclosure will contribute to a greater understanding on the part of the public at large about how one of the highest-ranking State officials in this administration has influenced U.S. foreign policy. Disclosure will “significantly” contribute to the public’s understanding of government activities or operations related to State’s policies and actions at the United Nations. The subject of this request is a matter of public interest, and the public’s understanding of the government’s activities would be enhanced through American Oversight’s analysis and publication of these records.

American Oversight’s request is also primarily and fundamentally for non-commercial purposes.16 As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promotes their availability on social media platforms, such as Facebook and Twitter.17 American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website18 and published an analysis of what the records reflected about DOJ’s process for ethics waivers.19 As an additional example, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border.20

Accordingly, American Oversight qualifies for a fee waiver.

Conclusion

We share a common mission to promote transparency in government. American Oversight looks forward to working with State on this request. If you do not understand any part of this request,

16 22 C.F.R. § 171.16(a)(2)(i)-(iii). 17 American Oversight currently has approximately 11,900 page likes on Facebook and 45,700 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight (last visited Nov. 1, 2018); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Nov. 1, 2018). 18 DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-francisco- compliance. 19 Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-the- doj-documents. 20 Audit the Wall, AMERICAN OVERSIGHT, https://www.americanoversight.org/investigation/audit- the-wall.

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have any questions, or foresee any problems in fully releasing the requested records, please contact Dan McGrath at [email protected] or 202.897.4213. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination.

Sincerely,

Melanie Sloan Senior Advisor American Oversight

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